An Improvident Order Creates An Anti-Transparency Mess

I just watched the pre-hearing conference before a District of Columbia Hearing Committee in the Tully-Rinckey prosecution.

Unfortunately, the pre-hearing can only be viewed in real time.

The pre-hearing underscores my concerns that the Board on Professional Responsibility’s  protective order was ill-advised, improvident and unworkable and – most significantly- creates an impermissible danger of closing significant portions of the hearing and evidence to the public, contrary to the Court of Appeals directive that these proceedings be open.

My prior post on the BPR order is linked here.

My concerns

I was surprised to see a recent Order of the Board on Professional Responsibility that granted in part the firm’s request to maintain under seal documents that will placed in evidence in the case.

There is a strong presumption that, once charges are filed, the entire proceeding is public. Protective orders are granted to protect the privacy of victims of lawyer misconduct; somewhat rarer are instances (such as here) where such orders are granted to protect alleged perpetrators.

The contentions of the parties are set out in the order. I repeat the contentions and the Board’s resolution at some length as I do not have access to a linkable copy.

The full order can be obtained from the Office of the Executive Attorney of the Board.

While the merits of the Board’s order are difficult to discern absent access to the underlying documents, I will observe the following:

To the extent this Order is intended to protect client confidential information, I am on board. To the extent it protects the firm and shields the practices from scrutiny when those very practices are the subject of the charges, I am most definitely not. To the extent that the Order will require closing the hearing, I view that as contrary to the mandate of Rule XI for open bar proceedings.

The BPR has created a mess in its eagerness to elevate the interests of Respondent lawyers over the public’s right to an open disciplinary process.

The discomfort of the Hearing Committee and uncertainty on how to comply and proceed was obvious. They feel bound by an order that is entirely unworkable unless the hearing is completely closed. 

I am disappointed but not surprised in the least.

Let me be clear: I have no view on the merits of the allegations or the quality of the evidence. My concerns are entirely about process. (Mike Frisch)